Couple heard a woman scream in ravine
Defence in Robert Badgerow appeal of 1981 murder file new evidence that could tip time frame his way
Exculpatory evidence never heard by the four juries that tried convicted killer Robert Badgerow is now being put before the Court of Appeal for Ontario.
The statement from a couple who heard a woman’s screams at 2 a.m. the night Diane Werendowicz was killed gives credence to Badgerow’s version of events on the night of the 1981 murder. Their statement, given to police two days after the homicide, was long ago ruled inadmissible by a judge. But the law has changed and Badgerow’s lawyers want his conviction tossed out because of (among other things) the missing evidence.
They are not asking for a fifth trial. Instead, they are calling for the case to be stayed, making Badgerow a free man.
It is remarkable that 37 years after Diane, a nursing assistant, was found strangled and drowned behind her
Stoney Creek apartment that there is still evidence unheard by jurors.
This is the so-called “Bittorf Statement” laid out in a factum filed last week with the Appeal Court by lawyers Ingrid Grant and Frank Addario. Keith and Bea Bittorf were assistant superintendents at the apartment complex where Diane lived at 50 Jerome Crescent. The highrises back onto the ravine where her body was found.
Police canvassing the neighbourhood after the murder took a statement from the Bittorfs that was recorded in an “occurrence report.” It said the couple lived in Apt. 108 on the ground floor on the east side of the building, closest to the ravine. On June 20, 1981, Keith was awakened by a woman’s screams. “Keith estimated the time at 2 a.m.”
“He awakened his wife and they both heard five or six ‘good’ screams that sounded like they were coming from approx. 50 yards away.”
The screams “echoed against the building,” the report says. “They looked outside but could see nothing beyond the six foot, hedged fence that separates the apartment property from the ravine.” The statement seems to align with Badgerow’s story that he had anonymous, consensual sex with Diane in his car that night in the parking lot of a bar she had been at. He maintains that during her 15 minute walk home alone after leaving his car, someone else killed her.
The Crown has argued Diane left the bar at about midnight and was killed minutes after that on her way home. But if Badgerow’s story is true, Diane would have walked home later than that. Juries have heard evidence from several other witnesses, including a forensic toxicologist, who put her time of death at 1:30 a.m. or later. Diane’s murder went unsolved for 17 years until new DNA technology matched Badgerow to semen found inside her body.
He is the first person in Canada to be tried four times for the same first degree murder. His case has gone to the Supreme Court of Canada. He was found guilty by the jury at
Justice Gerald Taylor, who presided over trials two and three, ruled the report was inadmissible because it was “hearsay” with no one to vouch for its accuracy.
his first trial. That conviction was overturned on appeal. Juries at his second and third trial were unable to come to a unanimous decision and hung juries were declared. In December 2016 in a Kitchener courtroom, he was again found guilty and sent to prison, but he has been out on bail for a year pending his appeal.
The Bittorfs were not called to testify at the first trial. They had both died by the second trial. The officer who took the statement from them has never testified, possibly because he was unwell or deceased. His partner, Sgt. Wayne Moore is a homicide detective on the case. He testified in a voir dire (with no jury present) prior to the second trial that he had no “independent recollection” of the Bittorf statement being taken and there were no longer any notes.
Justice Gerald Taylor, who presided over trials two and three, ruled the report was inadmissible because it was “hearsay” with no one to vouch for its accuracy. But the law on hearsay has since changed and the current appeal marks the first time Badgerow has been in a position to re-address the issue. Badgerow’s lawyers argue for the inclusion of the statement this way: “The hearsay at issue was recorded in a police occurrence report prepared in the course of an officer’s duties with the intention that it become part of the police file and be relied on by investigators of the case. Even if it does not purport to be a word for word record of the statement in question, such a record would be of no value to the police unless it were accurate.”
The appeal factum also lists numerous perceived errors by Justice Patrick Flynn, who oversaw the most recent trial. Most of those errors relate to an anonymous 911 call made to police after the murder. Now that the factum has been filed, the court will schedule Badgerow’s appeal. Meanwhile, he will continue to live with family in Binbrook.